[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10013
MARCH 4, 2009
Non-Argument Calendar
THOMAS K. KAHN
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CLERK

D. C. Docket No. 92-00039-CR-UUB

UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
DIOGENES PALACIOS,
Defendant-Appellant.
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On Appeal from the United States District Court for the
Southern District of Florida
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(March 4, 2009)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
In United States v. Palacios, No. 92-5180 (11th Cir. June 4, 2001) (not
published), we affirmed appellants convictions and sentences for conspiracy to

possess with intent to distribute cocaine, in violation of 21 U.S.C. 846, and for
possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1).
On June 21, 2007, appellant moved the district court to reduce his sentence
pursuant to 18 U.S.C. 3582(c)(2) on the ground that a retroactive amendment to
the Sentencing Guidelines, Amendment 591 to U.S.S.G. 2D1.1 and 2D1.2,
required the district court to sentence him only on the basis of the quantity of
cocaine charged in the indictment and established by the jury at his trial;1 the
amendment therefore lowered his sentencing range. The district court denied
appellants motion, concluding that United States v. Moreno, 421 F.3d 1217 (11th
Cir. 2005), precluded the relief appellant was seeking and, moreover, that
Amendment 591 did not appear to change his sentences because his offense of
conviction was not one of the enumerated offenses affected by the amendment.
Appellant appeals, challenging the courts ruling.
Appellant argues that United States v. Carr, 189 Fed. Appx. 907 (11th Cir.
2007), an unpublished decision, holds that Amendment 591 applies to all
Guidelines sections under Chapter 2, and that Carr effectively condemns as error
the district courts holding that Amendment 591 applies only to the selection of the

Appellant was not charged in the indictment with the amount of drugs the court held
him accountable for at sentencing.
2

offense guideline but not the base offense level within the guideline. Moreover,
the courts holding conflicts with Blakely v. Washington, 542 U.S. 296, 124 S.Ct.
2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000),
because the holding, if upheld, would allow the sentencing judge, rather than a jury
(or the defendant by admission), to determine the quantity of drugs for which the
defendant should be held accountable.
Under 3582, a district court may not modify a sentence of imprisonment
once the sentence has been imposed except where expressly authorized by law. 18
U.S.C. 3582(c)(1)(B). Section 1B1.10 of the Sentencing Guidelines states,
[w]here a defendant is serving a term of imprisonment, and the guideline range
applicable to that defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection (c) below, a reduction in
the defendants term of imprisonment is authorized under 18 U.S.C. 3582(c)(2).
U.S.S.G. 1B1.10(a).
In Moreno, we held, contrary to the position appellant has adopted, that
Amendment 591 applies only to the selection of the relevant offense guideline, not
the selection of a base offense level within the applicable offense guideline. 421
F.3d at 1220. Moreno is the law of this circuit unless overruled by the court en
banc or rendered inoperative by a decision of the Supreme Court.
3

AFFIRMED.